Independent agencies regulating and supervising economic activities – justification, intellectual background and legitimacy

The workshop will discuss the development of granting an increasing number of administrative authorities independence, examine the place which these bodies occupy in the constitutional arrangement, and their legitimacy. It is arranged by BI Norwegian Business School, Inland Norway University of Applied Sciences and University of Oslo. It is a part of the research project Central Banks’ expanded role in financial markets, which is funded by Finansmarkedsfondet and managed by the Norwegian Research Council.

Independent agencies – i.e., administrative authorities separate and independent of government – have become a permanent feature of the institutional landscape across jurisdictions.

Central banks are the traditional example of administrative powers being delegated to an authority independent of government. This institutional set-up has become widely recommended and accepted across jurisdictions since the 1980s. The justification for granting central banks independence is the risk of governments misusing their powers to interfere with a central banks goal of ensuring price stability.

The perceived need for institutions to be both impartial and able to exercise technical expertise without political interference has led to an increase in number and scope of independent administrative authorities. This is particularly the case with regards to authorities providing highly technical economic expertise (e.g., Gauweiler and Others, case C‑62/14, EU:C:2015:400, paragraph 75).

Today, competition authorities, financial supervisory and regulatory authorities as well as energy regulators have, or might soon be granted, a certain level of independence. In some cases, the delegation of tasks to independent agencies is a requirement resulting from EU and EEA law.

Independent institutions across sectors are faced with the same inherent challenge of balancing independence and accountability: independent administrative authorities may be at odds with the traditional notion of separation of powers which at the heart of constitutional thinking. Moreover, a key premise for reconciling delegation of powers to independent agencies with concerns over their lack of democratic legitimacy is the feasibility of restricting the delegated powers to the technical implementation of policy decided by elected officials. Depending on the powers delegated and the possibilities of meaningful judicial review with agency decision-making, this premise may not always hold. These tensions are articulated in different ways in the different countries.

The workshop will discuss the following questions across various sectors

-    What are the theoretical justifications for granting (or not granting) a 
      specific authority independence?                           
-    Is there coherence between the justification for independence and all the various
      tasks delegated to independent agencies? To what extent do the administrative
      bodies operate in line with the theoretical justifications (what regulatory and
      executive powers does it have)      
-    How are the institutions held accountable? When may independent
      administrative institutions incur liability for damages caused, and to what extent 
      may their decisions be annulled following judicial review?



12:00–14:00 Session 1

Professor Mads Andenæs (University of Oslo):

Independent Administrative Authorities in a Norwegian Context

Associate professor Johan Wibye (HINN):

Assessing institutional legitimacy

Professor Catherine Banet (University of Oslo):

EU law requirements for the independence of energy regulators

Associate professor Heikki Marjosola (University of Helsinki)

European Supervisory Authorities as Shadow Rulemakers

14:15–16:00 Session 2

Post doc/assoicate professor Astrid Iversen (University of Oslo and HINN):

Central Banks’ expanding role and institutional independence

Professor Tarjei Bekkedal (University of Oslo):

Inapplicable or invalid? – The implementation of EU Financial Supervisory Authorities decision in Norwegian law

Research fellow Marte Reisæter, University of Bergen:

Judicial review in merger cases: Complex economic assessments in the application of the SIEC-test in merger cases, and how this impacts substantive judicial review in the CJEU.

Associate professor, Sjur Swensen Ellingsæter, BI Norwegian Business School:

From meta-regulation to technocratic fine-tuning: The regulatory powers of administrative authorities in the EU law bank capital requirements framework


Published Nov. 9, 2022 3:40 PM - Last modified Nov. 17, 2022 9:24 AM